Tag Althof v. Michael Gower

FILED

NOT FOR PUBLICATION JAN 26 2017

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TAG EDWARD ALTHOF, No. 15-35213

Plaintiff - Appellant, D.C. No. 6:12-cv-00091-AA

v.

MEMORANDUM*

MICHAEL F. GOWER, Assistant

Director, Operations Division; et al.,

Defendants - Appellees.

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, District Judge, Presiding

Submitted January 18, 2017**

Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.

Tag Edward Althof appeals pro se from the district court’s summary

judgment in his 42 U.S.C. § 1983 action alleging an Eighth Amendment excessive

force claim against prison officials. We have jurisdiction under 28 U.S.C. § 1291.

*

This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3.

**

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

We review de novo. Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013).

We affirm in part, reverse in part, and remand.

The district court properly granted summary judgment for defendants

Gower, Premo, and Yoder because Althof failed to raise a genuine dispute of

material fact as to whether these defendants participated in, directed, or knowingly

failed to prevent the alleged constitutional violations. See Starr v. Baca, 652 F.3d

1202, 1207 (9th Cir. 2011) (setting forth requirements for establishing supervisory

liability under § 1983).

However, the district court erred in granting summary judgment for

defendants Kittleson and Blachly on Althof’s claim for monetary damages because

the district court improperly disregarded statements in Althof’s verified complaint

and affidavit opposing summary judgment. For example, according to Althof,

after he turned his head to one of the officers to address the fact that the officer was

“manhandling me and purposely causing me pain,” he was “slamm[ed] . . . against

the wall forcibly.” He alleges that while being escorted his arms were lifted behind

his back causing pain that was “unbearable,” despite having previously told one of

the officers of a prior shoulder injury. Althof disputes the officer’s account that he

attempted to run away, and contends that leg restraints were applied so tightly that

they cut into his flesh. Althof alleges injuries, including extreme physical pain and

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nerve damage, as a result of these events.

Thus, viewing the evidence in the light most favorable to Althof, Althof

raised a genuine dispute of material fact as to whether defendants maliciously and

sadistically used force against him. See Hudson v. McMillian, 503 U.S. 1, 7 (1992)

(holding that “the core judicial inquiry” in resolving an Eighth Amendment

excessive force claim is “whether force was applied in a good-faith effort to

maintain or restore discipline, or maliciously and sadistically to cause harm”);

Furnace, 705 F.3d at 1026 (a court reviewing a summary judgment motion must

“assume the truth of the evidence set forth by the nonmoving party”). Moreover,

summary judgment on the basis of qualified immunity was also improper because,

viewing the facts in the light most favorable to Althof, there is a genuine dispute of

material fact as to whether it would have been clear to every reasonable official

that Kittleson and Blachly’s actions violated Althof’s constitutional rights. See

Ashcroft v. al-Kidd, 563 U.S. 731, 735, 741 (2011) (discussing qualified immunity

and noting that a right is clearly established only if “every reasonable official

would have understood that what he is doing violates that right” (citation and

internal quotation marks omitted)). Accordingly, we reverse and remand for

further proceedings on the claim for monetary damages against defendants

Kittleson and Blachly.

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The parties shall bear their own costs on appeal.

AFFIRMED in part; REVERSED in part; and REMANDED.

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